Mens Rea Flashcards
what must P prove?
P must prove that D committed the actus reus with the relevant guilty mind (i.e. mens rea)
If P cannot prove this, D will not be convicted
what are the different mens reas?
o Intention
o Recklessness
o Negligence
o No mens rea (strict liability)
what is the MR for murder?
intention
what should intention not be confused with?
- It should not be confused with motive
what is the most culpable MR?
intention
what are the types of intention?
- There is direct and indirect intention
what is direct intention?
- i.e. where D seeks to achieve the consequences of their act
- In other words, D has direct intent to commit an offence if the consequence, whether it be death, criminal damage or an assault, is their aim or purpose, even if they thought they were unlikely to succeed
what is indirect intention?
give an example
- i.e. when D commits the actus reus, and the consequence is a by-product and not the principal purpose of what D was trying to do
example:
Mario wants to kill Dan. He intends to do so by cutting the brakes on Dan’s car. Sarah is a passenger and also dies. This and undesired consequence of his actions. Mario then tries to argue he is not guilty of murdering Sarah because he did not have the mens rea. The judge will apply the principles of indirect intention.
what is the indirect intention test?
the judge will direct the jury to find indirect intention where…
o The consequence of D’s act (or omission) was virtually certain to occur; and
o D foresaw the consequence as being virtually certain
re: indirect intention
explain stage 1…‘the consequence was virtually certain’ limb
This is an objective test This is an objective test
The court has not given any percentage figure of probability to guide this determination.
re: indirect intention
explain stage 2 ‘D foresaw the consequence as being virtually certain’
This is a subjective test
Whilst this is looking at what D foresaw (i.e. not the reasonable person), s8 of the CJA 1967 has said that the reasonable person may be a good indication of what D did foresee (in other words, it gives jurors flexibility – they do not have to accept what D has said)
what is the MR for most crimes?
intention or recklessness
explain recklessness
D took a risk which was:
o Unjustified or unreasonable; and
o D must be aware of the risk and go on to take it (i.e. subjective recklessness)
Both elements must be satisfied for D to be convicted
re: recklessness
explain ‘unjustified and unreasonable risk’
This is an objective test
Usually easy to satisfy because criminal conduct is unjustified, but the courts:
o Reasons for D’s actions (i.e. what is the social utility of D’s actions?);
o What the risk was; and
o The likely consequences
re: recklessness - ‘D must be aware of the risk…’
what type of test is this?
subjective
re: recklessness - ‘D must be aware of the risk…’
what is the test?
D is reckless if they foresee a risk that something might happen as a result of their behaviour and, with that foresight, they go on without justification to take it
o Awareness of the risk however small is sufficient
o D must actually foresee the risk. It is not that D should have foreseen the risk or a reasonable person.
re: negligence
what type of test is this?
objective
re: negligence
what is the test?
did D fall below the standard expected of a reasonable person?
If so, they are negligent and guilty of the offence
D need not foresee the risk to be guilty. Alternatively, D may have foreseen the risk but took no, or inadequate steps, to avoid it
re: negligence
what is an example of a common law offence?
gross negligence manslaughter
re: negligence
what is an example of a statutory offence?
give the wording of the offence
s3 RTA 1988, careless driving.
“drive a mechanically propelled vehicle on a road….or without reasonable consideration…”
“reasonable” confirms D will be guilty if they fell below what was expected of a reasonable driver
re: negligence
how is this MR slightly different to intention and recklessness?
The court are concerned with the act (i.e. the driving), not D’s state of mind.
what is a strict liability offence?
mens rea is not required for one or more elements of the actus reus
give some examples of strict liability offences
- These offences are usually created by statute and are regulatory in nature, i.e.:
o Food safety
o Consumer protection
o Misuse of drugs
o Environment
o Road safety
o Health and safety
how is a strict liability offence identified?
- the statute may expressly say
- if the act is silent, look for words that suggest a MR is required (i.e. intention, knowing, willingly), this means it is not a strict liability offence